The newly-appointed NLRB General Counsel Peter Robb issued his list of priorities in Advice Memo 18-02 released December 4, 2017. The Memo sets forth the “Mandatory Submissions to Advice” – the kinds of cases Regional Directors must submit to the Division of Advice to obtain guidance before issuing a complaint. The Advice Memo signals the GC’s intent to assist the Board in undoing much of the Obama-era Board’s sweeping changes to federal labor law. As predicted, many of the priorities focus on the Board’s handbook-related changes, granting employee access to employer email systems, and confidentiality rules in investigations.
Significantly, the Memo also rescinds a number of prior Advice Memos, including GC 15-04, prior GC Richard Griffin’s comprehensive views on employee handbooks, which significantly expanded the number of work rules deemed unlawful. The Memo further sets out the prior initiatives that “are no longer in effect,” including seeking to apply Weingarten rights to non-union settings.
The Memo lists “Examples of Board decisions . . . where [the GC’s office] also might want to provide the Board with an alternative analysis.” The list contains potentially significant changes to Obama-era precedent, including cases involving:
- Joint employment;
- The Board’s prior expansion of what constitutes protected concerted activity;
- Common employer handbook rules including rules prohibiting “disrespectful” conduct and rules prohibiting recording;
- Purple Communications and an employee’s presumptive right to use their employer’s email system to engage in Section 7 activity;
- Quietflex and cases finding work stoppages protected in contexts like retail sales floors; and
- Work rules “where the outcome would be different if Chairman Miscimarra’s proposed substitution for the Lutheran Heritage test was applied.”